This  is a petition filed  by the accused  in criminal case No. 2418 of the Court of First Instance of Masbate entitled "The People of the Philippine  Islands vs. Gregoria Payao", praying for the  issuance of a writ of mandamus to compel the respondent Juan G. Lesaca, Vacation Judge of the Court of First Instance of Masbate,  to decide whether or not the proof of guilt is evident or the presumption of guilt is strong against  the accused, with a view to  determining  whether the offense with which she is charged is bailable.

It appears from the pleadings that on March 23,1936, an information charging the petitioner with murder was filed in the justice of the peace court of San Jacinto, Province of Masbate.  The justice of  the peace,  upon motion of the accused, ordered her provisional  release upon her filing a bond in the sum of P20,000, and bound the case over to the Court of First Instance of Masbate.   On April 6, 1936, the provincial fiscal filed an information accusing the petitioner of the crime of murder committed  with the aggravating circumstances of premeditation  and treachery, and simultaneously moved for the cancellation of the bond filed with and approved by the justice of the  peace of San Jacinto, on the ground that the admission of the accused to bail is contrary to law because  it was demonstrated during the preliminary investigation before said justice of the peace that proof of guilt was strong against the  accused, and because said provincial fiscal was neither heard nor notified of the hearing of the application for bail.  The petitioner filed a written opposition to the motion of the provincial fiscal on April 29, 1936.  On May 2, 1936, the respondent judge after hearing the parties, the petitioner then being represented by Attorney Adolfo Grafilo granted the motion of the provincial fiscal for the cancellation of the bond filed for the provisional release  of the petitioner, and directed her confinement in the provincial jail of Masbate.  On May 9, 1936,  the petitioner moved for a  reconsideration of the foregoing order, praying  in the alternative that the court fix anew the amount of the bond for her provisional release. On May 16, 1936, the respondent judge denied the motion for reconsideration and reiterated his previous order for the confinement of the petitioner in jail during the pendency of the case against her.

The petitioner now comes before this court and prays (a) that an order issue directing the respondent  judge  or any other  judge of the Fifteenth Judicial District for the Province of  Masbate, who might take cognizance  of the criminal case No. 2418 of the Court of First Instance  of Masbate, entitled "The People of the Philippine Islands vs. Gregoria Payao", to pass upon  the question  of whether  or not the proof of guilt is evident  or the presumption of guilt is strong in said criminal case against the petitioner with a view to ascertaining whether the offense charged against the petitioner is bailable in accordance with existing law and procedure; (6) that in the meantime and before the final determination of this petition for a writ of mandamus, the clerk of the Court of First Instance of Masbate be ordered  to refrain from placing the petitioner in jail in compliance with the order of the respondent dated May 16, 1936, and (c) to grant the petitioner such other relief and remedies which she may be entitled to in the premises.

At the same time that the present petition was filed, the petitioner presented a motion ex-parte for the issuance of a writ of preliminary  injunction to restrain the  clerk of the Court of First Instance of Masbate from complying with the order of May 16, 1936, pending the final determination of this proceeding.  By an order dated May 21, 1936, the Associate Justice acting in vacation denied the issuance of the preliminary writ of injunction prayed for both in the original  petition and in the motion ex-parte.

Article III, section 1, paragraph 16, of the Constitution of the Philippines provides:

"All persons shall before conviction  be bailable  by sufficient sureties,  except those charged with capital  offenses when evidence of guilt is strong.  Excessive bail shall not be required"

Section 63, General Orders, No. 58, also provides as follows :

"All prisoners shall be bailable before conviction, except those charged with the commission of capital offenses when proof  of guilt is  evident or the presumption of guilt is strong."

It is evident from the foregoing that the accused in a criminal case is entitled to bail as a matter of right before conviction except in capital offenses  when the evidence of guilt is strong.  Where the granting of bail is a matter of judicial discretion, section 66 of General Orders, No. 58 outlines the procedure to be followed in  this wise:

"When admission to bail is a matter of  discretion, the court must require that reasonable notice of the hearing of the application for bail be given to the promoter fiscal."

In the case at bar, bond for the provisional release of the accused was allowed and  approved by the committing magistrate.  When the case was elevated to the  Court of First  Instance  which had  jurisdiction over  the  crime charged, the provincial fiscal moved for  the cancellation of the bond and put at issue the right of the accused  to be admitted to bail.   The parties were heard but no evidence was presented or offered by the accused to prove her right to bail upon  the facts  submitted and under the  law applicable thereto.  The petitioner, in her petition  for  bail presented as an alternative to her motion for reconsideration of the order of the respondent judge decreeing  the cancellation of the bond previously filed for her provisional release, again failed to make an offer of proof or to introduce evidence at the hearing thereof.

Relying  upon the  case  of  Montalbo  vs.  Santamaria ([1930], 54 Phil., 955), petitioner now comes to this court and contends that the respondent  should have conducted a judicial investigation to determine whether the evidence of guilt is strong against the accused.   Undoubtedly, on proper application, the  judge is under a legal obligation to receive evidence with a view to determining whether the evidence of guilt is so strong as, to warrant denial of bond.  But where, as in this case, the petitioner neither presented nor offered any evidence  when the motion  of the provincial fiscal for the cancellation of the bond was heard on May 2, 1936,  the judge was.justified in exercising  his discretion upon the facts available and properly brought to his attention.  In such a case, the judicial investigation may consist in the examination of the  evidence introduced during the preliminary investigation leading to the filing  of the information charging the accused with the commission of a crime.  It  may  also consist in the  examination of the evidence in the hands of the  prosecuting officer.  The explanation offered by counsel for the petitioner in the oral argument  regarding the  failure of the petitioner to present witnesses was that said witnesses were  at the  time  in Masbate and they were not available in Legaspi, Albay, where the motion for the cancellation of the bond was being heard.  The record does not show, however, that the petitioner asked for an  opportunity to present witnesses and that such petition  was ever denied by the  court.

In  the case at bar, upon the showing of the provincial fiscal that the result of the preliminary investigation as well as the evidence in  his possession indicated  strong evidence of guilt, and in the absence of any proffer of evidence on the part of the accused, the respondent judge did form his conclusion as to whether the offense charged was bailable or not.   The respondent in his answer-sets forth at length the reasons why he believed  the evidence of  guilt to be strong against the accused.  In thus cancelling the  bond filed  by  the petitioner for her  provisional release and in refusing to grant her bail, the respondent has merely exercised his discretionary authority under the law.   (U. S. vs. Babasa [1911], 19 Phil., 198.)   It is elementary law that mandamus  will not lie  to control discretionary action.

The petition is  hereby  denied with  costs  against  the petitioner.  So ordered.

Avanceña, C. J.,  Villa-Real, Abad Santos, Imperial,  Diaz, and Recto,  JJ., concur.